Federal Court of Australia

FQB24 v Minister for Immigration and Citizenship (No 2) [2026] FCA 775

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to ‘Minister for Immigration and Citizenship’.

2.    The second respondent’s name be amended to ‘Administrative Review Tribunal’.

3.    Paragraphs 4 and 5 and the remainder of the appellant’s interlocutory application filed on 8 April 2026 be dismissed.

4.    The appellant pay the first respondent’s costs of the interlocutory application filed on 8 April 2026 to be taxed in any event.

5.    The appeal be allowed and the judgment of the Federal Circuit and Family Court of Australia (Division 2) made on 18 November 2024 be set aside and in lieu thereof there be the following orders:

1.    A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 3 July 2024 to affirm the decision of the delegate of the first respondent made on 7 May 2024 to refuse to grant the applicant a protection visa.

2.    A writ of mandamus issue compelling the Administrative Review Tribunal to review the delegate’s decision according to law.

3.    The first respondent pay the applicant’s costs of the proceeding, if any, to be taxed in any event.

6.    The first respondent pay the appellant’s costs of the appeal, if any, to be taxed in any event.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s oral application to adjourn the hearing of the appeal be dismissed.

2.    Upon the appellant’s oral application to receive further evidence in the appeal, the audio of the hearing before the Administrative Appeals Tribunal on 18 June 2024 and 26 June 2024 be received as further evidence in the appeal.

3.    By 4:30 pm (AWST) on 28 April 2026 the Minister file in the appeal the audio files of the hearings referred to in paragraph 2 of these orders.

4.    By 4:30 pm (AWST) on 8 May 2026 the appellant file a document identifying any time periods in the audio files (by hour, minute, second and subject matter) that he contends are relevant to one or more of grounds 1-3 of the notice of appeal.

5.    The appellant have leave to rely on the document entitled ‘Affidavit [FQB24] (Clean, Court-ready reconstruction)’ sent to the Court on 23 April 2026 and referred to during the hearing as supplementary written submissions on the appeal and that document be taken to have been filed on 23 April 2026.

6.    By 4:30 pm (AWST) on 1 May 2026 the respondent file and serve any written submissions in response to the appellant’s supplementary written submissions.

7.    The parties have liberty to apply to vary paragraphs 3-6 of these orders on 48 hours’ written notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    This appeal primarily concerns the failure to exercise the discretionary power to adjourn the review by the Administrative Appeals Tribunal of a Part 7-reviewable decision under the former Pt 7 of the Migration Act 1958 (Cth). The principal issue for the Court is whether the AAT’s decision not to adjourn the review of the appellant’s application for a protection visa was a legally unreasonable exercise of the power. The appeal also raises another issue by which the appellant contends that the AAT failed to consider a document relevant to the review because the Secretary failed to give the Registrar of the AAT that document in accordance with the requirement of s 418(2) of the Act. It is unnecessary to address that ancillary issue because, for the reasons that follow, the exercise of the power of adjournment was legally unreasonable and beyond the AAT’s jurisdiction. As a consequence, the decision the AAT made to affirm the delegate’s decision to refuse to grant the appellant a protection visa must be set aside and the appeal must be allowed.

Background

2    The appellant is a citizen of Kenya who arrived in Australia in November 2014 on a higher education sector visa. In April 2024 the appellant made an application for a protection visa. On 7 May 2024 a delegate of the Minister refused to grant the appellant a protection visa. The appellant then applied to the AAT for a review of the delegate’s decision.

3    Before the AAT the appellant made protection claims under both the refugee and complementary protection criteria set out in s 36(2)(a) and s 36(2)(aa) of the Act. He claimed to have a well-founded fear of persecution (refugee criteria) by reason of his membership of certain social groups if removed to Kenya and (or) that there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal he will suffer significant harm (the complementary protection criteria). Among the appellant’s protection claims were that he fears arrest and (or) interrogation including prolonged detention and the inability to obtain a certificate of good character to work or travel in Kenya due to charges brought (and subsequently withdrawn) against his mother for the possession of explosives.

4    In response to the AAT’s invitation to attend a hearing given under ss 425, 425A and 426 of the Act, the appellant requested the AAT obtain evidence from his mother. The appellant attended the hearing before the AAT and, at that hearing, the AAT contacted the appellant’s mother but was unable to receive her oral evidence at that time. The AAT adjourned the review to a later date for the purpose of receiving the appellant’s mother’s evidence. The evening before the date of the next hearing, the appellant provided the AAT with a written statement of his mother. The appellant then attended the hearing the following day, but after a number of attempts the AAT was not able to contact the appellant’s mother by telephone and the hearing was concluded without receiving her oral evidence. About one week later, the AAT affirmed the delegate’s decision not to grant the appellant the visa. The AAT took into account the appellant’s mother’s written statement, but was not satisfied the appellant satisfied either the refugee criteria or the complementary protection criteria: T [129], [133], [135].

5    The appellant applied for judicial review in the Federal Circuit and Family Court of Australia (Division 2) in which he advanced three grounds of jurisdictional error. The primary judge rejected each ground of review and dismissed the application: PJ [35]-[42].

6    By the appellant’s amended notice of appeal filed in February 2026 he contends the primary judge erred in failing to find that the AAT made a jurisdictional error in declining to exercise its powers to adjourn the review to a second further hearing and to receive oral evidence from the appellant’s mother. He contends the AAT’s failure to exercise those powers was legally unreasonable (ground 1) or constituted a denial of procedural fairness (ground 2). Further, that the primary judge erred in failing to find that the appellant was denied procedural fairness and (or) that the Tribunal constructively failed to exercise jurisdiction due to the failure of the Department of Home Affairs and (or) Tribunal to ensure certain material was placed before the presiding member at the hearing of the review (ground 3).

Preliminary matters

7    At the time of the filing of the amended notice of appeal and submissions the appellant had legal representation. However, shortly before the appeal was listed for hearing, the appellant’s legal representative withdrew. As a consequence, when the appeal was called on for hearing the appellant applied for and was granted an adjournment of the hearing of the appeal. Certain other case management orders were also made including an order requiring the appellant to file and serve any application for the Court to receive further evidence in the appeal about three weeks before the date to which the hearing of the appeal was adjourned.

Interlocutory applications for recusal, further adjournment and other orders

8    Rather than filing and serving an application for the Court to receive further evidence in the appeal, the appellant filed an interlocutory application requesting the presiding judge to recuse himself and for certain other interlocutory orders relating to, amongst other things, verification of the accuracy of the transcript of the proceeding before the primary judge and production of the audio recording of the hearing before the primary judge.

9    The application for recusal was heard and dismissed for reasons given ex tempore and later published: FQB24 v Minister for Immigration and Citizenship [2026] FCA 548. As a consequence of that dismissal, that part of the interlocutory application relating to recusal (paragraphs 1, 2, 3 and 6) was dismissed.

10    After the application for recusal was dismissed, the appellant made an oral application for an adjournment of the hearing of the appeal. He submitted that he could not proceed with the appeal without verifying the accuracy of the transcript of the proceeding before the primary judge which he asserted was inaccurate. He requested an order requiring production of the audio recording of the hearing before the primary judge and an adjournment to afford him the opportunity to listen to the audio and verify the accuracy of the transcript. He submitted that an accurate transcript was necessary for him to advance ground 3 of the appeal. The oral application for an adjournment was also dismissed for reasons given ex tempore but that part of the interlocutory application relating to production of the audio recording and costs (paragraphs 4, 5 and 7 of the interlocutory application) was reserved.

11    A further adjournment was refused because the appellant was provided with the transcript a month before the hearing date of the appeal, he was not able to articulate the manner in which he asserted the transcript was inaccurate or the manner in which an accurate transcript would assist in the determination of the relevant ground of appeal (ground 3). Further, the Minister was not taking any point that the appellant had not made the relevant submission to the primary judge or that the appellant needed leave to advance ground 3 of the notice of appeal. Therefore, the appellant appeared to be unconstrained in the submissions that he was able to make to this Court in the exercise of its appellate jurisdiction regarding the asserted errors of the primary judge. Therefore an adjournment to permit the appellant to verify the accuracy of the transcription of the proceeding before the primary judge was not consistent with the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court of Australia Act 1976 (Cth).

12    As it is unnecessary to consider ground 3 of the notice of appeal, the remaining substantive part of the interlocutory application (paragraphs 4 and 5) should also be dismissed. Further, as the interlocutory application was unsuccessful the appellant should pay the Minister’s costs of that application.

Oral application to receive further evidence in the appeal

13    After dismissing the recusal and adjournment applications and affording the appellant some time to collect his thoughts, the appeal was heard. In the course of hearing the appellant’s submissions he made reference to the audio recordings of the proceedings before the AAT. He made it clear that he wanted to rely on that audio and that submission was then treated as an oral application to receive further evidence in the appeal. At the conclusion of the hearing orders were made to receive the audio recording in evidence and to permit the appellant to identify those parts of the audio recording to which he had made reference in his oral submissions. The orders facilitating the receipt of further evidence were made for the following reasons.

14    The Court has a discretionary power to receive further evidence in an appeal under s 27 of the Federal Court Act and r 36.57 of the Federal Court Rules 2011 (Cth). The applicable principles are well-established. In short, the power is informed by but not limited to the receipt of ‘fresh’ evidence in accordance with common law principles. The power is remedial and should be construed liberally. But it is not unfettered and is constrained by the subject matter, scope and purpose of s 27. That includes having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M. The power should also not be exercised in a manner that obliterates the distinction between original and appellate jurisdiction. An important consideration in the exercise of the power is whether, if the further evidence had been available at the hearing before the primary judge, it would have produced, or at least would be likely to have produced a different result: e.g., CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; 294 FCR 318 at [32]-[34] (Katzmann, Charlesworth and Burley JJ).

15    Although it is to be expected that the audio recording of the proceedings before the AAT was or should have been available as evidence before the primary judge and there was no explanation for the failure of the appellant to adduce that evidence in the proceeding below, the Minister was not opposed to the Court receiving that further evidence in the appeal. The failure to adduce the audio recording may also be inferred from the appellant’s status as a litigant-in-person and evident lack of familiarity with the practice and procedure of court proceedings. Moreover, the audio recordings were clearly relevant and important to, at least, a proper understanding of the grounds of review and appeal based on an asserted denial of procedural fairness. Although the audio recordings were not played during the hearing of the appeal, if the appellant’s oral submissions as to their contents were accepted, it was likely that the outcome of the proceeding before the primary judge could have been different. Further, given that the appellant was a litigant-in-person and the nature of the proceeding below was judicial review, the receipt of further evidence in the appeal was just to relieve the appellant of the disadvantage of litigant-in-person status and it did not risk removing the distinction between appellate and original jurisdiction to any significant extent.

Legally unreasonable exercise of discretionary power

16    At the relevant time, Pt 7 of the Act made provision for the review by the AAT of Part 7-reviewable decisions. Relevantly, a decision of a delegate of the Minister to refuse to grant a protection visa under s 36 and s 65 of the Act was a Part 7-reviewable decision.

17    On such a review the AAT was not bound by technicalities, legal forms or rules of evidence and was required to ‘act according to substantial justice and the merits of the case’: s 420. Part 7 Div 4 contained certain provisions relating to the procedure the AAT was to employ in the conduct of the review. The provisions of that Division were taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with: s 422B(1). But, in applying that Division, the AAT was required to act in a way that was ‘fair and just’: s 422B(3).

18    The AAT was required to invite the visa applicant to appear before the Tribunal and give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). The visa applicant was entitled to give the AAT written notice that the person wanted the Tribunal to obtain oral evidence from a person or persons named in the notice: s 426(2). The AAT was required to have regard to the visa applicant’s wishes, but was not required to obtain evidence (orally or otherwise) from a person named in the visa applicant’s notice: s 426(3). Power was conferred on the AAT to allow the giving of evidence by telephone or any other means of communication: s 429A. Section 427(1)(b) provided that ‘[f]or the purpose of the review of a decision, the Tribunal may adjourn the review from time to time’.

19    What was ‘fair and just’ for the purposes of s 422B(3) was to be ascertained by reference to the actions of the AAT in the conduct of a Pt 7 review. The actions of the AAT may have involved a step taken in the satisfaction of a duty imposed by Pt 7 Div 4 and may have been the exercise of a discretion such as the discretions under s 426(3) (to obtain oral evidence from a person) or s 427(1) (to adjourn the review). What was fair and just may be discerned, to an extent, from the purpose of the provision which required that an act be done or which conferred a discretionary power on the AAT to perform the act, as well as from the purpose of surrounding provisions and Div 4 as a whole. The duty to invite the visa applicant to appear before the AAT was central to Div 4 and the review for which that Division made provision. Therefore, the concept of what was fair and just extended to more than merely issuing an invitation, but to giving effect to the evident purpose of that invitation which was to afford the visa applicant a meaningful chance to present his or her protection claim. In that context, if a visa applicant was not provided an opportunity to present evidence, it might be concluded that the hearing contemplated by s 420 did not take place and the exercise of the power of review was not authorised: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [58]-[62] (Hayne, Kiefel and Bell JJ) (although dealing with the former Pt 5 of the Act, their Honours’ reasoning is equally applicable to the former Pt 7).

20    It follows that the exercise of the discretionary powers in s 426(3) and 427(1) in a manner that deprived a visa applicant of a meaningful chance to present his or her protection claim under s 425(1) may have resulted in a failure to accord a visa applicant procedural fairness within the exhaustive requirements of the natural justice hearing rule in Div 4. Further, such a failure may have resulted in a failure to conduct the review according to law and the former Pt 7 of the Act and jurisdictional error: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [50]-[52] (Allsop CJ, Robertson and Mortimer JJ).

21    Separately, it is implicit that Parliament intended that the discretionary powers conferred on the AAT by s 426(3) and s 427(1)(b) were exercised reasonably: Li at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J). There are two contexts in which the standard of legal unreasonableness in administrative decision-making is employed. Legal unreasonableness can be a conclusion reached by a court exercising supervisory jurisdiction after identification of a particular jurisdictional error in the decision-making process. Various well-recognised categories of jurisdictional error such as: mistakenly asserting or denying the existence of jurisdiction; misapprehending or disregarding the nature or limits of functions or powers where jurisdiction otherwise exists; failing to take into account a mandatory relevant consideration; taking into account a consideration required to be disregarded; bias; fraud, bad faith, are all particular kinds of errors that may also be described as legally unreasonable. However, legal unreasonableness can also be outcome focussed without necessarily identifying any particular jurisdictional error. The latter occurs within ‘an area of decisional freedom’, but has the character of a decision that is ‘arbitrary, capricious or without common sense’. In circumstances of legal unreasonableness in outcome, a court exercising supervisory jurisdiction may infer jurisdictional error because the manner in which the decision was arrived at according to law cannot be identified. The exercise of the power may be regarded as lacking ‘an evident and intelligible justification’: Singh at [44]; Li at [27]-[28], [72], [105].

22    Where no reasons for the decision under review have been given by the decision-maker, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented and assess whether the outcome is justified or intelligible according to law. However, where reasons are given, a supervising court is able to follow the reasoning process of the decision-maker through and identify any divergence, or any factors, in the reasons that make the exercise of the power legally unreasonable. The ‘intelligible justification’ should lie in the reasons given for the exercise of the power, at least, where a discretionary power is involved. ‘Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would … be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable’: Singh at [45]-[47].

23    In Singh the Full Court made the following further important and apposite observations:

48    The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

49    In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li at [10], in these tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li at [80] the position of the tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. It might be said there is a different kind of balancing required as between the statute’s exhortation to the tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick” (see ss 353(1), 420(1)), and “according to substantial justice and the merits of the case” (ss 353(2), 420(2)), and the interests of individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual applicant or application: Li at [93] per Gageler J; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J; Li at [15] per French CJ, at [52] per Hayne, Kiefel and Bell JJ), and the manner in which these tribunals are required to perform their functions and exercise their powers:

That context makes clear that it [s 353] cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.

(Li at [14] per French CJ.)

24    Ultimately, even if the outcome of the exercise of the discretionary power falls within the range of objectively reasonable outcomes in the circumstances, if the decision-maker has adopted an illogical or irrational process of reasoning, the exercise of the power would lack evident and intelligible justification. It would be tantamount or equivalent to a ‘toss of a coin’ or an arbitrary decision and the visa applicant would be deprived of the chance of a different outcome based on a decision made according to law.

Attempts to take oral evidence from the appellant’s mother

25    As already mentioned, in accordance with s 425 of the Act the appellant was invited to appear before the AAT to give evidence and present arguments relating to the issues arising in relation to the decision under review. In accordance with s 426 the appellant gave the AAT notice that he wanted the AAT to obtain oral evidence from the appellant’s mother and her lawyer.

26    A hearing was held on 18 June 2024. The audio recording of that hearing was received as further evidence in the appeal. The appellant’s mother was contacted by telephone during the hearing. However, evidently the interpreter had not been ‘booked’ for the complete duration of the hearing and oral evidence was not taken from the appellant’s mother at that time. The AAT member conveyed to the appellant’s mother, through the interpreter, that she would be contacted about another time to take her evidence. The AAT member said to the appellant words to the effect that he did not want to rush taking his mother’s evidence ‘because it was obviously quite important’ and he would arrange for another interpreter to take her evidence likely on another day.

27    Towards the end of the hearing on 18 June 2024 the appellant confirmed that he wanted the AAT to hear oral evidence from his mother. The AAT member said that another hearing would be arranged for that purpose. The AAT member indicated that another option would be for the appellant to file a written statement and, after receiving that statement, the member would make a decision about whether an oral hearing of evidence would be necessary. Nonetheless, the AAT member said that he would list the matter for a further hearing and if the appellant wanted to provide a statement he could do so and if the member needed to hear oral evidence from the appellant’s mother he would do so at that hearing.

28    Another hearing was held on 26 June 2024. Late on 25 June 2024 the appellant provided the AAT with written statements of the evidence of his mother and her lawyer. Again, the audio record of that hearing was received as further evidence in the appeal. Shortly after the hearing commenced two attempts were made to contact the appellant’s mother via telephone. No response was received. The hearing then proceeded for about 20 minutes and another attempt was made to contact the appellant’s mother. Again, there was no response. The AAT member said words to the effect: ‘Mr [appellant] for some reason we can’t get in touch with your mother now I’ve got her statement which I will consider’. The appellant said that he did not understand why his mother was not answering but he had mentioned to her that she was probably not required to give an oral statement and that could be the reason she was not available. (The probability that the appellant’s mother would not be required to give oral evidence was evidently a reference to the AAT member’s statements at the hearing on 18 June 2024 about the provision of a written statement and making a decision at the adjourned hearing whether taking oral evidence would be needed.) The appellant added that there had been ‘uncertainty back home’. That was evidently a reference to political protests that had started to take place in Kenya. The appellant said that he would ‘check with her later to make sure everything is okay’. The appellant expressed a concern about the welfare of his mother.

29    Towards the end of the hearing on 26 June 2024 the AAT member asked the appellant if he wanted to make any further submissions. The appellant thanked the member for the opportunity to hear him and, thereafter, the member concluded the hearing. Unlike the hearing on 18 June 2024 the AAT member gave no indication that the hearing would be listed at a future time to hear oral evidence from the appellant’s mother. However, there was also no discussion about the appellant’s mother’s evidence. The appellant was not specifically asked if he wanted his mother to give oral evidence. The appellant was not asked to ascertain the reason his mother was not available or provide the AAT with an explanation for her lack of availability.

AAT reasons for not further adjourning the review

30    The AAT reasons record that a hearing was held on 26 June 2024 to enable the appellant’s mother to give evidence, a statement of her evidence was provided on 25 June 2024, attempts were made to contact her to take her evidence, she did not answer the telephone and the appellant understood that she would be available, but also said that he told her she might not need to give oral evidence: T [44], [48]. Nowhere is it recorded that the appellant’s mother was contacted and available to give evidence on 18 June 2024, but her evidence was not taken at that time because the interpreter the AAT had arranged was not able to remain for the duration of the hearing on that day. Nor is it recorded that the appellant also said that it was possible that his mother was not available due to the political protests that had been taking place.

31    The AAT reasons record that the appellant had not ‘as at the date of [the AAT reasons], indicated why his mother was unavailable’: T [48]. However, it is not recorded that the appellant was requested to provide an explanation or that he indicated that he would provide an explanation or that there was any expectation that an explanation would be provided within any particular timeframe.

32    The AAT reasons set out the substance of the appellant’s mother’s written statement: T [45]-[47]. The AAT member then said:

49    Overall, I consider that the evidence contained in [the appellant’s mother’s] statement is vague and conclusory. I note that she does not refer to any attempts to extort her either during the currency of her charges or following their withdrawal. Whilst I am prepared to attach weight to the evidence of the [appellant's] mother, I am not prepared to attach significant weight to it because I consider that it is vague, conclusory, and lacking in detail. Her statement is expressed in the same vague, undetailed, and conclusory manner that the [appellant's] evidence [has] been punctuated with.

50.    I have considered whether, notwithstanding her apparent unavailability, I should schedule another hearing to attempt to take evidence from her. In that regard and among other things, I note that her witness statement refers to her fears of continued [prosecution] and concludes by indicating that "[t]his is all I wish to state". I further note that the [appellant] had indicated that he had told her [sic] mother that she may not be required to give oral evidence. I note that the [appellant] has not, as at the date of this decision, contacted the Tribunal after the hearing to explain why his mother was unavailable, whether he still wishes for her to give oral evidence, whether his mother still wishes to give oral evidence and, if so, when she might be available to give oral evidence. Considering those matters, I have exercised my discretion against doing so.

The primary judge’s reasons

33    In the appellant’s application for judicial review he contended that the AAT had failed to accord him procedural fairness by failing to adjourn the review and schedule another hearing for the purpose of taking the appellant’s mother’s evidence. The primary judge evidently understood that contention as an assertion that, in the circumstances, the failure to schedule another hearing was both a failure to accord the appellant procedural fairness and (or) was legally unreasonable.

34    The primary judge dismissed the appellant’s procedural fairness and (or) legal unreasonableness ground on the basis that the ‘[AAT] at paragraphs 44-50 gave logical and rational reasons, that have an evident and intelligible justification for not exercising its discretion to hold a third hearing in respect of the unavailability of the [appellant’s] mother to give evidence at the second hearing.’ Further, the ‘discretionary decision cannot be said to be capricious’ or ‘to lack an evident or intelligible justification’, and accordingly the decision was not legally unreasonable and no jurisdictional error had been demonstrated: PJ [37]-[39].

35    With respect to the primary judge, I have arrived at the opposite conclusion.

The decision not to take oral evidence was legally unreasonable

36    As the AAT member had observed during the hearing on 18 June 2024, the appellant’s mother’s evidence was important to the appellant’s protection claim.

37    The AAT reasons record that the member considered the appellant’s mother’s written statement ‘vague, conclusory and lacking in detail’: T [49]. The written statement was in English. As was evident from the contact with her on 18 June 2024, she required the assistance of a Swahili interpreter to give evidence in English. In that context, the AAT member’s reliance on the conclusionary statement in the appellant’s mother’s witness statement that ‘[t]his is all I wish to state’ lacks intelligible justification. That statement is formulaic and was also used at the conclusion of the lawyer’s statement. It also does not provide any logical or rational reason for considering that the identified deficiencies in the form of the written statement could not potentially be overcome by oral evidence.

38    The AAT member’s reference to the appellant’s statement that he had told his mother that she may not be required to give evidence is not an objectively logical or rational reason for not adjourning the hearing to take oral evidence from her. The AAT member had said on 18 June 2024 that a decision would be made about whether he would take oral evidence from the appellant’s mother after he received her statement. Thus, the appellant conveying to his mother that she may not be required to give evidence was an accurate summary of the state of affairs at that time. In context, no inference arises from what he said to his mother that the appellant no longer wanted her to give oral evidence to the AAT. Further, the AAT reasons make no mention of the concern the appellant expressed for the welfare of his mother and overlook that the appellant gave the political protests as another potential reason that his mother was not available.

39    Likewise, the failure of the appellant to contact the AAT and provide an explanation of the reasons for his mother’s unavailability, or confirm that he wanted her to give oral evidence, she wanted to give that evidence and, if so, when she might be available, are not objectively logical or rational reasons for not adjourning the hearing to take oral evidence from the appellant’s mother. The appellant was not requested to provide any of that information to the AAT. As of 18 June 2024, the appellant had indicated that he wanted his mother to give evidence. As of 26 June 2024, he had expected that she would be available to give evidence. There is nothing in the AAT reasons or in the audio record of the hearing to suggest that the appellant had indicated that his position had or may have changed regarding his desire for his mother to give oral evidence. Further, as already mentioned, the AAT member had indicated on 18 June 2024 that after receiving a written statement of the appellant’s mother a decision would be made about her giving oral evidence. On 26 June 2024, after receiving her written statement (which the AAT member evidently considered deficient) attempts were made to contact the appellant’s mother. That is, the AAT member, in substance, conveyed to the appellant that he had made a decision under s 426(3) to obtain oral evidence from the appellant’s mother after the member had received her written statement. The AAT member gave the appellant no notice that he had or may change his mind about obtaining oral evidence from the appellant’s mother. Therefore, there was no reason for the appellant to have considered it necessary to confirm that he wanted his mother to give oral evidence.

40    In short, although the AAT reasons provide an explanation for the decision not to adjourn the review and receive oral evidence from the appellant’s mother, they do not provide an evident or intelligible justification for not exercising the discretionary powers under s 426(3) and s 427(1). Given the importance of the appellant’s mother’s evidence to his protection claim, the deficiency in the form of her written statement, that her written statement was not made in her first language, that she had been contacted and was available on 18 June 2024, that the reason for her unavailability on 26 June 2024 was not known, that the appellant had given no indication that he did not want her to give oral evidence, that the appellant had not been requested to provide an explanation for her non-availability or confirm if he wanted her to give oral evidence, and that there was no apparent reason for not deferring making a decision on the review, the failure to exercise the power to adjourn the review and obtain oral evidence from the appellant’s mother is inexplicable. That decision was legally unreasonable in the circumstances. The failure to exercise the powers also deprived the appellant of a meaningful opportunity to ‘give evidence and present arguments’ for the purposes of s 425(1) of the Act.

Disposition

41    For the foregoing reasons, the appeal must be allowed and orders of the primary judge set aside. In lieu of the primary judge’s order there should be an order setting aside the decision of the AAT to affirm the delegate’s decision to refuse to grant the appellant a protection visa. As the AAT has been abolished and replaced with the Administrative Review Tribunal, the matter should be remitted to the ART for determination according to law. The Minister should pay the appellant’s costs of the proceeding in the Federal Circuit Court and of the appeal, if any, to be taxed in any event.

Associate:

Dated:    19 June 2026